ESCONDIDO MUTUAL WATER COMPANY, ET AL., PETITIONERS V. LA JOLLA,
RINCON, SAN PASQUAL, PAUMA AND PALA BANDS OF MISSION INDIANS, ET AL.
No. 82-2056
In the Supreme Court of the United States
October Term, 1983
On writ of certiorari to the United States Court of Appeals for the
Ninth Circuit
Brief for the Secretary of the Interior
TABLE OF CONTENTS
Statutes involved
Statement
A. Historical background
B. The proceedings before the Commission
C. The decision of the court of appeals
Summary of argument
Argument:
I. When a proposed power project includes a reservation,
Section 4(e) of the Federal Power
Act requires the Federal Energy Regulatory
Commission to accept without modification conditions
prescribed by the Secretary with supervisory
authority over that reservation for the
adequate protection and utilization of the reservation
A. Introduction
B. The language of Section 4(e) expresses Congress's
intent that licenses for projects on
reservations must include, without modification,
the conditions prescribed by the appropriate
Secretary
C. The legislative history of the FPA confirms
that the Secretary's Section 4(e) conditions
are mandatory
D. The Commission's administrative interpretation
has not been longstanding or consistent
and is not entitled to deference
E. Review of the reasonableness of the Secretary's
Section 4(e) conditions properly rests
with the court of appeals, not the Commission
II. Section 4(e)'s reservation proviso protects the
reserved water rights of the Pauma, Pala and
Yuima reservations
III. Petitioners must comply with the right-of-way
requirements of Section 8 of MIRA
A. Prior to enactment of the FPA, Section 8 of
MIRA provided the exclusive method for obtaining
rights-of-way across Mission Indian
reservations for water conveyance facilities.
B. The FPA did not repeal Section 8 of MIRA.
Conclusion
Appendix
STATUTES INVOLVED
The pertinent provisions of the Federal Power Act, 16 U.S.C. 791a
et seq., and the Mission Indian Relief Act, ch. 65, 26 Stat. 712 et
seq., are set forth in an appendix to this brief at 1a-10a, infra.
QUESTIONS PRESENTED
1. Whether, in issuing a license for a hydroelectric project that
utilizes federal reservation lands, pursuant to Section 4(e) of the
Federal Power Act, 16 U.S.C. 797(e), the Federal Energy Regulatory
Commission may modify or reject license conditions deemed "necessary
for the adequate protection and utilization" of the reservation by the
Secretary with supervisory authority over the reservation.
2. Whether the Commission's obligations under Section 4(e) to make
a finding of no interference or inconsistency with the reservation's
purpose before issuing a license, and to include in the license the
Secretary's conditions for the protection and utilization of the
reservation, extend to reservations that are situated directly
downstream from a hydroelectric project and whose reserved water
rights will be affected by the project.
3. Whether Section 8 of the Mission Indian Relief Act, ch. 65, 26
Stat. 714, requires a Commission licenses whose hydroelectric project
is designed to convey water across Mission Indian reservation lands to
obtain right-of-way permits from the Bands whose reservations are
traversed by the water conveyance facilities.
STATEMENT
The legal issues in this case arise in the context of a decision by
the Federal Energy Regulatory Commission /1/ to issue a license
permitting the Escondido Mutual Water Company, the City of Escondido
and the Vista Irrigation District to operate a small hydroelectric
project (Project No. 176) near Escondido, California. As the
Commission recognized (Pet. App. 132, 338), however, the principal
function of Project No. 176 is not to generate power, but to serve as
a water conveyance facility for diverting water from the San Luis Rey
River watershed to the Escondido and Vista service areas for municipal
and agricultural uses. This case has a long and complicated history,
to which we now turn.
A. Historical Background
1. The San Luis Rey River originates near Palomar Mountain in
northern San Diego County, California. In its natural condition, it
flows through the La Jolla, Rincon and Pala Indian Reservations and
then through the City of Oceanside on its way to the Pacific Ocean.
Three other Indian reservations -- the Pauma, the Yuima (which is
under the jurisdiction of the Pauma Band) and approximately three
quarters of the San Pasqual -- also are within the watershed. (A
general map of the area and of Project No. 176 is reproduced at Pet.
App. 30 and 308).
The San Luis Rey River watershed is now and historically has been
the homeland of the La Jolla, Rincon, Pauma, Pala, and Yuima Indians.
The severe plight of these and other Mission Indians of Southern
California was brought to the attention of the Nation and Congress in
a report prepared in 1883 by two Interior Department officials, Helen
Hunt Jackson and Abbot Kenney. S. Exec. Doc. 49, 48th Cong., 1st
Sess. 7-37 (1884), reprinted in S. Rep. 74, 50th Cong., 1st Sess.
(1888). See also H.R. Rep. 3282, 50th Cong., 1st Sess. (1888). The
report described the egregious conditions under which the Indians were
living and observed that "their history has been one of almost
incredible long-suffering and patience under wrongs." S. Exec. Doc.
49, supra, at 8-9. Jackson and Kinney recommended that land with safe
and secure boundaries be set aside for each band or village of Mission
Indians and that all non-Indians living within the reservations be
removed. They also recommended that patents be issued for whatever
lands were eventually set aside so as to insure the permanence of
Indian ownership.
The Jackson-Kinney report led the Department of the Interior to
submit a proposed bill to Congress in 1884 for the relief of the
Mission Indians. The bill, as amended, was eventually enacted as the
Mission Indian Relief Act of 1891 (MIRA), ch. 65, 26 Stat. 712 et seq.
The concerns that led to the enactment of MIRA were summarized in the
Senate Report (S. Rep. 74, supra, at 1, 3 (quoted at Pet App. 4)):
The history of the Mission Indians for a century may be written
in four words: conversion, civilization, neglect, outrage. The
conversion and civilization were the work of the mission fathers
previous to our acquisition of California; the neglect and
outrage have been mainly our own. Justice and humanity alike
demand the immediate action of Government to preserve for their
occupation the fragments of land not already taken from them.
* * * * *
Much of the land is valueless without irrigation, and the
Indians are being deprived of their water rights wherever and
whenever the interests of the whites demand the appropriation of
such rights.
See H.R. Rep. 3251, 51st Cong., 2d Sess. 1, 2-3 (1890). /2/ In
short, "(t)he Mission Indians had deserved well and had fared badly
and Congress passed the Mission Indian Relief Act of 1891 for their
particular redress." Arenas v. United States, 322 U.S. 419, 421 (1944)
(footnotes omitted).
Pursuant ot the provisions of MIRA, the La Jolla, Rincon, San
Pasqual and Pala Reservations were withdrawn from settlement and entry
by order of President Harrison on December 29, 1891. Trust patents
were issued in 1892 for the La Jolla and Rincon Reservations, in 1893
for the Pala Reservation, and in 1910 for the San Pasqual Reservation.
The Pauma and Yuima Reservations were also established in accordance
with MIRA through the acquisition of quitclaim deeds by the United
States in 1891 and 1893. Although MIRA originally called for the land
to be held in trust for 25 years followed by the issuance of fee
patents, the periods of trust were later extended indefinitely. Pet.
App. 4.
2. Since 1895, the Escondido Mutual Water Company (Mutual) and its
predecessor in interest have diverted the waters of the San Luis Rey
River out of the watershed to the community in and around the City of
Escondido. The point of diversion is located within the La Jolla
Indian Reservation at a point upstream from the other reservations.
The conveyance facility, known as the Escondido Canal, traverses parts
of the La Jolla, Rincon, and San Pasqual Indian Reservations, as well
as some private lands and federal lands administered by the Bureau of
Land Management. The canal terminates at Lake Wohlford, an artificial
storage facility. Pet. App. 4-5.
Various agreements and permits dating back to 1894 purportedly
grant rights-of-way across certain reservation lands, and also provide
that specified quantities of water are to be supplied to some of the
reservations (Pet. App. 49-58; J.A. 9-38). The meaning and validity
of those agreements is the subject of separate proceedings instituted
by the Bands (and subsequently joined by the United States) in the
United States District Court for the Southern District of California.
Rincon Band of Mission Indians v. Escondido Mutual Water Co., Nos.
69-217-S, 72-276-S & 72-271-S. /3/
In 1915, Mutual constructed the Bear Valley powerhouse, which is
located downstream from Lake Wohlford and which generates power with
water released from that lake; the Bear Valley powerhouse has a
capacity of 520 kilowatts (kw) (Pet. App. 53 & n.24). In 1916, Mutual
completed construction of the Rincon powerhouse, which is located on
the Rincon Reservation and which generates power with water from the
Escondido Canal; the Rincon powerhouse has a capacity of 240 kw (id.
at 53). Thus, the combined capacity of both plants is less than one
megawatt. In 1922, the predecessor of Vista Irrigation District
(Vista) constructed Henshaw Dam on the San Luis Rey River,
approximately nine miles upstream from Mutual's diversion dam.
Pursuant to a complex contractual relationship, Vista and Mutual have
shared the output of both Lake Henshaw and a well field located above
Lake Henshaw, and the use of the Escondido Canal (id. at 56-58).
In 1921, following enactment of the Federal Water Power Act of
1920, ch. 285, 41 Stat. 1063 et seq. (now codified as Part I of the
Federal Power Act (FPA), 16 U.S.C. 791a et seq.), Mutual applied to
the Commission for a license covering its project. In 1924, the
Commission issued a 50-year license to Mutual covering the Escondido
diversion dam and canal, Lake Wohlford, and the Rincon and Bear Valley
powerhouses (but not Vista's Henshaw facilities). /4/
Since 1925, Mutual and Vista have captured and impounded
approximately 90% of the flow of the San Luis Rey River at the
diversion dam on the La Jolla Reservation, and have diverted those
waters to Lake Wohlford. The total amount of water diverted out of
the watershed averages approximately 14,600 acre-feet per year.
Natural flow accounts for only 2,705 acre-feet of the average annual
diversion, the remainder consisting of water stored in Lake Henshaw
and water pumped from the ground-water basin above Lake Henshaw (Pet.
App. 6). Both Escondido and Vista have available alternative supplies
of water from sources other than the San Luis Rey River (Pet. App.
125-126, 182).
Approximately ten percent of the diverted flow, an average of 1,500
acre-feet per year, has been delivered to the Rincon Reservation
pursuant to a contract entered into by the Secretary of the Interior
on behalf of the Rincon Band in 1914. No project water has been
delivered to any of the other reservations (Pet. App. 6), although all
the reservations include several thousand acres of as yet undeveloped
irrigable lands whose natural source of supply is the San Luis Rey
River (id. at 132-133, 139-141, 177-182, 185-186).
Between 1894 and 1957, none of the Bands received any compensation
for the use of its lands or for the diversion of the river. Since
1957, the San Pasqual Band has received $25 per year in annual charges
/5/ for the use of about three acres of tribal lands licensed in that
year. Pet. App. 7.
B. The Proceeding Before the Commission
1. In 1969 and 1970, the Secretary of the Interior and the La
Jolla, Rincon and San Pasqual Bands filed complaints with the
Commission, alleging that Mutual and Vista had violated the provisions
of Mutual's 1924 license. They sought, inter alia, increased annual
charges to the Bands through the term of the license. In response,
the Commission initiated an investigation pursuant to Section 4(g) of
the FPA, 16 U.S.C. 797(g).
In April 1971, Mutual (subsequently joined by the City of
Escondido) filed an application with the Commission for a new "minor"
hydroelectric license /6/ for Project No. 176. In its application,
Mutual proposed to continue operating the project as it had during the
original license period.
In 1972, the Secretary requested the Commission to recommend
federal takeover of Project No. 176, pursuant to Section 14(b) of the
FPA, 16 U.S.C. 807(b) after expiration of the original license. /7/
Additionally, the La Jolla, Rincon, and San Pasqual Bands, acting
pursuant to Section 15(b) of the FPA, 16 U.S.C. 808(b), applied for a
nonpower license, under the supervision of Interior, to take effect
when the original license expired. /8/ The Pauma and Pala Bands
subsequently joined in this application. Under both Interior's
federal takeover proposal and the Bands' application for a nonpower
license, the licensed project facilities would be used for the
economic development, primarily agricultural and recreational, of the
reservations.
2. After extensive hearings, an administrative law judge (ALJ)
concluded that Project No. 176 is not subject to the Commission's
licensing jurisdiction because the power aspects of the project are
insignificant in comparison to the project's primary purpose of
conveying water for domestic and irrigation consumption (J.A.
357-368). The ALJ emphasized that "(t)he horsepower generated by the
entire project is not even the equivalent to that produced by a half
dozen modern automobiles" (J.A. 358 (footnote omitted)). The ALJ
accordingly recommended dismissal of all Commission proceedings
relating to Project No. 176.
3. The Commission reversed the ALJ's decision (Pet. App. 42-378).
The Commission first held that it had jurisdiction over the project
despite the small amount of electric power generated by the project
and the relative insignificance of that power as compared to the
project's water conveyance function (id. at 74-78).
With regard to the past operation of Project No. 176, the
Commission found that Mutual had violated its license by permitting
Vista's joint use of project facilities and by diverting water stored
in the Lake Henshaw reservoir and pumped from above that reservoir
through the Escondido Canal (Pet. App. 226-228). It awarded
readjusted annual charges to the La Jolla and Rincon Bands as of
September 1969, and to the San Pasqual Band as of May 1970, in amounts
based on the operations authorized by the 1924 license (id. at
232-234). /9/
The Commission denied Interior's recommendation for federal
takeover of Project No. 176 and the Bands' application for a nonpower
license (Pet. App. 92-116). Instead, it granted a new 30-year license
to petitioners Mutual, the City, and Vista. Although Vista had not
applied for a license with Mutual, the Commission determined that it
should be made a joint licensee because its Henshaw facilities are an
integral part of the project (id. at 80-86). Having decided to
include the Henshaw facilities in the project license, the Commission
treated the proceedings as an application for an initial license,
rather than as a relicensing pursuant to Section 15 of the FPA, 16
U.S.C. 808 (Pet. App. 133-137 & n.136).
The Commission included certain conditions in the new license
designed to satisfy the requirements of Sections 4(e) and 10(a) of the
FPA, 16 U.S.C. 797(e) and 803(a), that the license "not interfere or
be inconsistent" with the purposes for which the Indian reservations
were created and that the project be the one "best adapted to a
comprehensive plan" for the development of the San Luis Rey River
(Pet. App. 133, 185). /10/ Specifically, the Commission required
development of a permanent water operating plan (id. at 171) and
delivery of certain quantities of water to the La Jolla, Rincon, and
San Pasqual Reservations for domestic, agricultural, and commercial
uses (id. at 187). /11/ The Commission did not impose similar
conditions for the benefit of the Pala, Pauma and Yuima Reservations,
which are located directly downstream from the project, because it
concluded that Section 4(e) applies only to reservations that are
physically occupied by the project facilities (Pet. App. 138), and
that "insufficient water is available to satisfy all beneficial public
uses within the affected area" (id. at 150-151).
Pursuant to Section 4(e) of the Act, the Secretary of the Interior
prescribed conditions to be contained in the license which he deemed
"necessary for the adequate protection and utilization" of the
affected reservations. The Commission accepted some of the
Secretary's Section 4(e) conditions, but rejected or modified others
on the ground that they would prevent the Commission from exercising
its Section 10(a) judgment to ensure that the project would be the one
best adapted to a comprehensive plan for beneficial public uses (Pet.
App. 143-155). /12/
In addition, the Commission concluded that the licensees were not
required, under Section 8 of MIRA (26 Stat. 714), to enter into
contracts for canal rights-of-way with those Bands whose reservation
lands are traversed by the Escondido Canal (Pet. App. 155-158). The
Commission expressed the view that, "in light of the comprehensive
regulatory scheme of the Federal Power Act, * * * Section 8 (of MIRA)
is not applicable to appliances for the conveyance of water associated
with water power projects" (id. at 157). On rehearing, the Commission
held that, to the extent that Section 8 of MIRA may be inconsistent
with provisions of the FPA, the former statute is repealed by Section
29 of the FPA, 16 U.S.C. 823 (Pet. App. 337-338). /13/
Finally, the Commission noted that the outcome of the water rights
litigation pending in district court may have a significant impact on
the continued validity of the license (Pet. App. 187 n.192). /14/ It
therefore specified that the license may be modified "in any manner
considered appropriate" after disposition of the water rights
litigation (id. at 259).
C. The Decision of the Court of Appeals
1. The court of appeals reversed the Commission's order issuing a
license to petitioners and remanded the case to the Commission for
further proceedings (Pet. App. 1-29). The court first upheld the
Commission's assertion of jurisdiction over the project (id. at
12-16). The court concluded, however, that, under Section 8 of MIRA,
petitioners are required to obtain from the La Jolla, Rincon and San
Pasqual Bands right-of-way permits, which are subject to the approval
of the Secretary of the Interior, before they may utilize the portions
of the Escondido Canal that traverse those reservations. The court
rejected the Commission's argument that Section 29 of the FPA, 16
U.S.C. 823, repealed Section 8 of MIRA. The court saw no conflict
between the Power Act and Section 8 of MIRA, which was enacted to
enable the Indians to benefit from the construction of irrigation
canals across reservation lands (Pet. App. 20-22). In the court's
view, the two statutes are easily accommodated: "Where a project
requiring a license * * * crosses lands to which MIRA applies, the
operator of that project is required both to obtain a license from the
Commission, and to obtain the necessary right-of-way by the method
provided in Section 8 of MIRA" (Pet. App. 21).
In addition, the court of appeals held that the Commission lacked
authority to reject or modify the conditions propounded by the
Secretary of the Interior for inclusion in the license pursuant to
Section 4(e) of the FPA (Pet. App. 22-25). The court rejected the
argument that its interpretation of Section 4(e) conflicts with the
Commission's obligation under Section 10(a) of the FPA, 16 U.S.C.
803(a), to approve a project that will be the one "best adapted to a
comprehensive plan" for the utilization of waterways and the
development of power. The court concluded that Sections 4(e) and
10(a) are not inconsistent, reasoning (Pet. App. 24):
In the case of a project within a reservation, once the
Secretary of the Interior has propounded those conditions deemed
necessary for the protection and utilization of the reservation,
the Commission is free to modify the proposal in other ways, but
not by altering or omitting Interior's conditions, to make it
feasible and beneficial to the public. If this cannot be done,
the Commission may decline to issue a license at all.
The court also rejected the claim that its construction of Section
4(e) would give the Secretary of the Interior an "unconditional veto
power" over licensing authority, noting that any license issued by the
Commission that includes conditions propounded by the Secretary would
be subject to judicial review pursuant to Section 313(b) of the FPA,
16 U.S.C. 825l(b) (Pet. App. 24-25, as amended at Pet. App. 32-33).
Finally, the court held that the three reservations located
downstream from the project also are entitled to the protection of the
Section 4(e) reservation proviso. The court noted that the definition
of "reservations" in the FPA includes "interests in lands" owned by
the United States and reserved from private appropriation under public
land laws (16 U.S.C. 796(2)), and it concluded that the water rights
of the Pala, Pauma and Yuima Bnads come within this definition (Pet.
App. 25-26). Although it acknowledged that the use of the phrase
"licenses * * * within any reservation" suggests that a project must
be physically situated on a reservation before the provisions of
Section 4(e) come into play, the court stated that it would resolve
that ambiguity in favor of the applicability of the 4(e) proviso to
the downstream reservations. The court reasoned (Pet. App. 27-28):
A water project may occupy a geographical portion of an
Indian reservation without impinging in any serious way on
Indian interests -- e.g., by crossing a corner of the
reservation with a power line or an access lane. Conversely, a
project may turn a potentially useful reservation into a barren
waste without ever crossing it in the geographical sense --
e.g., by diverting the waters which would otherwise flow through
or percolate under it. We will not attribute to Congress, on
account of the mere presence in its enactment of one ambiguous
word, the perverse and illogical intention of guarding carefully
against the former danger while openly embracing the latter.
2. On petitions for rehearing, Judge Anderson dissented from
portions of the panel's original opinion (Pet. App. 33-41). Noting
that the FPA itself contains a scheme for acquiring the use of tribal
lands within reservations, Judge Anderson concluded that Section 8 of
MIRA cannot be considered as establishing a prerequisite for obtaining
rights-of-way for FPA-licensed projects that convey water across
Mission Indian reservation lands (Pet. App. 34-37). Furthermore,
Judge Anderson concluded that, although the Secretary of the
Interior's Section 4(e) conditions must be included in a license to
the extent they are reasonable, the initial responsibility for
reviewing those conditions for reasonableness should rest with the
Commission, rather than with the reviewing court (Pet. App. 40-41).
SUMMARY OF ARGUMENT
I
Section 4(e) of the Federal Power Act, 16 U.S.C. 797(e), authorizes
the Federal Energy Regulatory Commission to issue licenses for
hydroelectric projects on any body of water over which Congress has
jurisdiction under its commerce power, "or upon any part of the public
lands or reservations of the United States." The statute specifically
requires, however, that, before issuing a license for a project on a
reservation, the Commission must find that the license "will not
interfere or be inconsistent" with the reservation's purpose. And,
most relevantly, Section 4(e) also provides that any such license
"shall be subject to and contain such conditions" as the Secretary
with supervisory authority over the reservation "shall deem necessary
for the adequate protection and utilization of the reservations."
Both the language and history of the FPA make Congress's intent
crystal clear: when an applicant seeks a license for a project on a
reservation (e.g., a military reservation, a national forest, or an
Indian reservation), the conditions prescribed by the appropriate
Secretary for the protection and utilization of the reservation must
be included in the license. The Commission, to put it simply, has no
authoirty either to reject or to modify the Secretary's conditions.
Thus, although Congress has permitted reservations to be used for
water power development, it has sought to ensure that such
reservations are adequately protected from the adverse effects of such
development and that the uses for which the reservations were created
are not impaired.
Petitioners and the Commission argue that this approach would
undermine the principal goal of the FPA, which was to centralize
licensing decisions in a single Commission. But Congress deliberately
constructed the licensing provisions of the FPA in such a way as to
preserve the responsibility of the individual Secretaries for the
welfare of those reservations within their respective jurisdictions.
This seems to us a perfectly rational scheme of allocating authority
in the case of a project on a reservation. In any event, Congress has
spoken clearly on the matter and the wisdom of the statutory scheme is
not before the Court. Despite the dire protestations of petitioners
and the Commission, the statute does not permit the Secretary to
insert unreasonable conditions in the license and thus thwart the
project. The Secretary's conditions are subject to review for
reasonableness in the court of appeals, together with all other
elements of the license.
II
The Commission's obligations under Section 4(e) to make a fiding of
no interference or inconsistency with the reservation's purpose before
issuing a license, and to include in the license the appropriate
Secretary's conditions for the protection and utilization of the
reservation, extend to the Pauma, Pala and Yuima Reservations, which
are located directly downstream from petitioners' proposed project,
and whose reserved water rights will be affected by the project. The
FPA defines "reservations" as including "interests in lands" that are
owned by the United States or that are "acquired and held for any
public purposes." As the court of appeals held (Pet. App. 25-26), the
reserved water rights of the downstream reservations clearly are
encompassed within this definition. Although the language of Section
4(e), which refers to "licenses issued * * * within any reservation,"
tends "to paint a geographical picture" (Pet. App. 26), it is more
sensible to conclude that the Section 4(e) provision applies to any
reservations that are sufficiently "affected" by a project to warrant
invocation of the Commission's licensing authority under Section 23(b)
of the FPA, 16 U.S.C. 817.
The argument that the downstream reservations are not protected by
the Section 4(e) proviso because the Commission is not empowered "to
adjudicate" water rights misses the point entirely. Adjudication of
water rights is a far different matter from formulating conditions for
the protection and utilization of a reservation. Indeed, the
Commission itself recognized as much when, in including its own
conditions in the license, pursuant to Section 10(a) of the FPA, 16
U.S.C. 803(a), it stated that its conditions were the "price in water
of the power license" (Pet. App. 176). That the Commission is
empowered to include conditions under the public interest standard of
Section 10(a), however, does not render the Section 4(e) reservation
proviso superfluous. Section 10(a) permits a balancing of various
conflicting interests, whereas Section 4(e) requires a focused inquiry
specifically designed to protect reservations.
III
Section 8 of MIRA authorizes rights-of-way across Mission Indian
reservations for water conveyance facilities. Unlike other
contemporaneously enacted right-of-way statutes, however, Section 8 of
MIRA expressly requires tribal consent for such a grant. Against a
background of widespread abuses of Mission Indians by white settlers,
and, in particular, infringement on Indian water rights, Section 8 was
enacted for the articulated purpose of securing for the Bands a
"sufficient quantity of water for irrigating and domestic purposes"
(26 Stat. 714).
Section 8 of MIRA, which is a specific statute addressing
rights-of-way for water conveyance facilities, is applicable to
petitioners' project, whose primary purpose is to convey water (and
which only incidentally produces a small amount of power). The FPA, a
general statute concerned with water power development, is not
inconsistent with, and does not repeal, Section 8 of MIRA, either
expressly or by implication. Nothing in the FPA or its history
precludes a requirement of tribal consent where, as here, Congress
previously legislated such a requirement.
ARGUMENT
I. WHEN A PROPOSED POWER PROJECT INCLUDES A RESERVATION,
SECTION 4(e) OF THE FEDERAL POWER ACT REQUIRES THE
FEDERAL ENERGY REGULATORY COMMISSION TO ACCEPT WITHOUT
MODIFICATION CONDITIONS PRESCRIBED BY THE SECRETARY
WITH
SUPERVISORY AUTHORITY OVER THAT RESERVATION FOR THE
ADEQUATE PROTECTION AND UTILIZATION OF THE RESERVATION
A. Introduction
1. In 1920, after more than six years of intense debate, Congress
enacted the Federal Water Power Act (FWPA), ch. 285, 41 Stat. 1063 et
seq. (now codified as Part I of the FPA, 16 U.S.C. 791a et seq.).
This was the culmination of congressional efforts to develop a
comprehensive national policy for the hydroelectric development of our
Nation's waterways. Prior to passage of the FWPA, control of
hydroelectric development on federal lands and federally controlled
waters was divided among three agencies: the Department of War, which
had jurisdiction over navigable waterways and military reservations;
/15/ the Department of the Interior, which had jurisdiction over
public lands, national parks and monuments, and Indian reservations;
/16/ and the Department of Agriculture, which had jurisdiction over
national forests. /17/ See generally, Chemehuevi Tribe of Indians v.
FPC, 489 F.2d 1207, 1215-1223 (D.C. Cir. 1973), rev'd on other
grounds, 420 U.S. 395 (1975); J. Kerwin, Federal Water-Power
Legislation 105-114 (1926); Pinchot, The Long Struggle for Effective
Federal Water Power Legislation, 14 Geo. Wash. L. Rev. 9 (1945).
Between 1914 and 1917, Congress considered various bills that dealt
separately with hydroelectric development on navigable waters and
public lands. /18/ In 1917, President Wilson directed the Secretaries
of War, Interior, and Agriculture to draft a bill establishing a
comprehensive scheme for regulating water power development on all
federal lands and waters. Kerwin, supra, at 217-218. Extensive
hearings were held on this bill in 1918, /19/ but it was not enacted
into law until the following session of Congress. Id. at 255-262. As
initially enacted, the statute provided for a Commission composed of
the three Secretaries. As explained below (see pages 29-31, infra),
the Act was amended in 1930 to create a Commission composed of five
independent members.
2. The basic licensing authority of the Federal Power Act is
contained in Section 4(e), 16 U.S.C. 797(e). That section authorizes
the Commission to issue licenses "for the purpose of constructing,
operating, and maintaining" dams, water conduits, reservoirs, or other
project works /20/ "necessary or convenient for the development and
improvement of navigation, and for the development, transmission, and
utilization of power" across or in any bodies of water over which
Congress has jurisdiction under the Commerce Clause, "or upon any part
of the public lands and reservations of the United States (including
the Territories)." Section 10 sets forth certain general conditions
upon which licenses are issued. Among other things, it requires that
"the project adopted * * * shall be such as in the judgment of the
Commission will be best adapted to a comprehensive plan" for
developing waterways for commerce, water power development, and other
beneficial uses. 16 U.S.C. 803(a). Accordingly, the Commission may
require the modification of any project and the plans and
specifications of the project works before approval. It may also
impose such "other conditions (as are) not inconsistent with the
provisions of this chapter." 16 U.S.C. 803(g).
Congress, however, has not left every aspect of the licensing
decision to the Commission's discretion. On the contrary, it has
expressly limited the Commission's discretion where reservations /21/
and navigable waterways are involved. Thus, the second proviso of
Section 4(e) states that no "license affecting the navigable capacity
of any navigable waters of the United States shall be issued until the
plans of any structures affecting navigation have been approved by the
Chief of Engineers and the Secretary of the Army. /22/ Section 18 of
the FPA states that the Commission "shall require" a licensee to
construct, maintain, and operate such "fishways as may be prescribed
by the Secretary of the Interior or the Secretary of Commerce, as
appropriate." 16 U.S.C. 811. That section further provides that the
operation of any navigation facilities constructed in connection with
a dam or diversion structure "shall at all times be controlled by such
navigation regulations "as may be made from time to time by the
Secretary of the Army." Finally, the Commission must require the
licensee to construct and maintain at its own expense such lights and
signals "as may be directed by" the Coast Guard. /23/
Like restrictions on the Commission's discretion are applicable in
the case of licenses affecting federal reservations. Under the first
proviso to Section 4(e), no such license may issue unless the
Commission finds that "the license will not interfere or be
inconsistent with the purpose for which such reservation was created
or acquired." And, most importantly for present purposes, Section 4(e)
also provides that the license issued "shall be subject to and contain
such conditions as the Secretary of the department under whose
supervision such reservation falls shall deem necessary for the
adequate protection and utilization of such reservations."
B. The Language of Section 4(e) Expresses Congress's
Intent that Licenses for Projects on Reservations Must
Include, Without Modification, the Conditions
Prescribed
by the Appropriate Secretary
Petitioners (Br. 33-34) and the Commission (Br. 17-21) go to great
lengths to direct the Court's attention away from the specific
language of the Section 4(e) proviso at issue here. /24/ As this
Court has frequently observed, however, the starting point in
construing a statute must be the statutory language, because it is
logical to assume that Congress expresses its purposes through the
ordinary meaning of the words it uses. See, e.g., INS v. Phinpathya,
No. 82-91 (Jan. 10, 1984), slip op. 4. Thus, "'(a)bsent a clearly
expressed legislative intention to the contrary, (the statutory)
language must ordinarily be regarded as conclusive.'" North Dakota v.
United States, No. 81-773 (Mar. 7, 1983), slip op. 12 (quoting
Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S.
102, 108 (1980)). Furthermore, the
individual appraisal of the wisdom or unwisdom of a particular
course consciously selected by the Congress is to be put aside
in the process of interpreting a statute. Once the meaning of
an enactment is discerned and its constitutionality determined,
the judicial process comes to an end.
TVA v. Hill, 437 U.S. 153, 194 (1978).
The language of the first proviso in Section 4(e) could not be
clearer. That statute expressly states that when a license includes a
reservation, the license "shall be subject to and contain such
conditions as the Secretary of the department under whose supervision
such reservation falls shall deem necessary for the adequate
protection and utilization of such reservations." 16 U.S.C. 797(e).
Several points are obvious from a plain reading of the text. To
begin with, the statute requires that the license "shall be subject to
and contain" the Secretary's conditions. This language leaves no room
for the Commission to reject or modify those conditions. /25/
Moreover, the statute charges the Secretary under whose supervision
the reservation falls with the responsibility for developing those
conditions. /26/ This is in contrast to the first clause of the
reservation proviso, which charges the Commission with making a
finding that the license will not interfere or be inconsistent with
the purposes for which the reservation was created.
In sum, although the authority to issue a license rests with the
Commission, Congress empowered other federal officials to protect
other federal interests, such as navigation, fishways, and
reservations. See pages 19-20, supra. The Commission argues (Br.
19-20 & n.25), however, that if it is required, under Section 4(e), to
accept the Secretary's conditions without modification, its authority
to adopt the project best adapted to a comprehensive plan for
beneficial uses, pursuant to Section 10(a) of the FPA, 16 U.S.C.
803(a), would thereby be impaired. /27/ But this argument, if
accepted, would require the Court to construe the specific mandate of
Section 4(e) in such a way as to deprive it of meaning.
Congress has determined that power projects may be located on
reservations, but only if issuance of the license would not interfere
with the reservation's purposes and only if the appropriate
Secretary's conditions are inserted in the license to insure adequate
protection and utilization of the reservation. There can be no doubt
that the reservation proviso in Section 4(e) makes protection and
utilization of reservations paramount to power development. /28/
Significantly, Congress placed the responsibility for prescribing the
Section 4(e) conditions squarely upon the Secretary with
responsibility over the affected reservation. Thus, while the
Commission is guided by its authority under Section 10(a) to promote
power development, it is the individual Secretary's responsibility
under Section 4(e) to see that reservations under his supervision are
adequately protected from the adverse effects of that power
development and that the uses for which the reservations were created
are not impaired. Although the Commission makes a "public interest"
determination under Section 10(a) (Udall v. FPC, 387 U.S. 428, 450
(1967)), that decision must be made in light of the secretarial
conditions. If the conditions necessary to protect the reservation
from the adverse effects of the power development make the project
infeasible, the Commission "may decline to issue a license" (Pet. App.
24).
It is no answer to invoke -- as both petitioners (Br. 33) and the
Commission (Br. 13, 21) do -- generalized statements in earlier cases
to the effect that the FPA constitutes a "complete and comprehensive
plan" for the development of hydroelectric power (FPC v. Tuscarora
Indian Nation, 362 U.S. 99, 118 (1960)), and was intended to replace
the "piecemeal" approach to hydroelectric development that existed
under earlier laws (First Iowa Hydro-Electric Cooperative v. FPC, 328
U.S. 152, 180 (1946)). These statements obviously do not address or
resolve the question presented here concerning the extent to which the
FPA itself allocates responsibilities to federal agencies other than
the Commission. /29/
C. The Legislative History of the FPA Confirms that the Secretary's
Section 4(e) Conditions are Mandatory
One overriding congressional concern is clear from the FPA and its
legislative history: military reservations, Indian reservations, and
national forests, which have been reserved from public disposal for
specified uses, are not to be impaired by hydroelectric development.
Even the earliest bills under consideration, which would have
authorized the Secretary of the Interior to lease "reserved or
unreserved" public lands, typically provided that
such leases shall be given within or through any of said
national forests or other reservations only upon a finding by
the chief officer of the department under whose supervision such
forest, national monument, or reservation falls that the lease
will not injure, destroy, or be inconsistent with the purpose
for which such forest, national monument, or reservation was
created or acquired.
H.R. 16673, 63rd Cong., 2d Sess. Section 1 (1914), reprinted in
1914-1915 Hearings 5-6. As Edward Finney, the Assistant Attorney of
the Department of the Interior, testified, the intent of this clause
was to permit the chief officer with supervisory authority over the
reservation "to refuse to sanction (the license) upon the grounds that
it might interfere with the purposes of the reservation." 1914-1915
Hearings 79.
This concept was retained in subsequent proposals, including the
bill prepared in 1917 by the Secretaries of War, Interior and
Agriculture at the request of President Wilson (see page 18, supra).
The relevant provision of the Administration bill (H.R. 8716, 65th
Cong., 2d Sess. Section 4(d) (1918)) was ultimately enacted without
substantive change as part of the FPA. In a memorandum explaining the
bill, O. C. Merrill, one of the chief draftsmen of the FWPA in the
Department of Agriculture and later the first Commission Secretary,
wrote that creation of the Commission "will not interfere with the
special responsibilities which the several Departments have over the
National Forests, public lands and navigable rivers" (J.A. 371). With
regard to what is now Section 4(e), he explained (J.A. 373-374):
4. Licenses for power sites within the National Forests to be
subject to such provisions for the protection of the Forests as
the Secretary of Agriculture may deem necessary. Similarly, for
parks and other reservations under the control of the
Departments of the Interior and of War. Plans of structures to
be subject to the approval of the Secretary of War.
This provision is for the purpose of preserving the
administrative responsibility of each of three Departments over
lands and other matters within their exclusive jurisdiction.
This position was reaffirmed during hearings on the
Administration's water power bill, when Secretary of Agriculture
Houston was asked about the possibility of exempting the Grand Canyon
from the operation of the bill. He responded (1918 Hearings 683):
I can see no special reason why the matter might not be
handled safely under the provisions of the proposed measure,
which requires that developments on Government reservations may
not proceed except with the approval of the three heads of
departments -- the commission -- with such safeguards as the
head of the department immediately charged with the reservation
may deem wise.
Later, Secretary Houston left no doubt that a Secretary's Section
4(e) conditions could not be overridden by the Commission as a whole:
If I am not mistaken, the provisions in the proposed measure are
more restrictive than existing law, in that they require the
assent of three heads of departments and also the assent of the
particular head of the department immediately charged with that
Government interest.
1918 Hearings 684.
The intended import of Section 4(e) was again demonstrated during
the Senate debates on the Administration's bill. In explaining the
effect of Section 4(e), Senator Walsh of Montana, a strong supporter
of the Administration's bill, stressed that a license for a project on
an Indian reservation could not issue without the consent of the
Secretary of Interior:
That is to say, when an application is made for a license to
construct a dam within an Indian reservation, the matter goes
before the commission, which consists of the Secretary of War,
the Secretary of the Interior, and the Secretary of Agriculture.
They all agree that it is in the public interest that the
license should be granted, or a majority of them so agree.
Furthermore, the head of the department must agree; that is to
say, the Secretary of the Interior in the case of an Indian
reservation must agree that the license shall be issued.
59 Cong. Rec. 1564 (1920). /30/
In contrast, the Commission and petitioners are unable to point to
any legislative history leading to the passage of the 1920 FWPA that
contradicts the statute's plain meaning that a Secretary's Section
4(e) conditions are binding on the Commission. /31/ The references in
the hearings and committee reports cited by the Commission (Br. 23)
address the need to develop and implement a national water power
policy through a single commission, rather than through three separate
departments with jurisdiction over a particular project dependent upon
whether it was to include navigable waters, public lands, or national
forests. We do not dispute that this is what Congress intended in
creating the Commission. But Congress also expressly afforded special
protections to reservations in Section 4(e). The general references
cited by the Commission do not address the effect of that proviso.
/32/ On the other hand, the statements from the legislative history on
which we rely were directed specifically at the effect of Section
4(e), and thus are far more persuasive than the remarks quoted by the
Commission and petitioners. Moreover, the statements of agency
representatives such as O. C. Merrill and Secretary Houston, who
"'participated in drafting and directly made known their views to
Congress in committee hearings,'" are necessarily entitled to "'great
weight.'" United States v. Vogel Fertilizer Co., 455 U.S. 16, 31
(1982) (quoting Zuber v. Allen, 396 U.S. 168, 192 1969)). /33/
The reliance by the Commission and petitioners upon the legislative
history of the 1930 amendments to the FWPA is equally unpersuasive.
Significantly, the 1930 legislation amended only Sections 1 and 2 of
the FWPA. Act of June 23, 1930, ch. 572, 46 Stat. 797. The
amendments reorganized the Commission by replacing the three
Secretaries with five independent Commissioners appointed by the
President. Congress also for the fitst time authorized the Commission
to hire its own headquarters staff instead of requiring it to rely
upon personnel detailed from the Departments of War, Interior, and
Agriculture, /34/ although the amendments did continue in force the
pre-existing arrangement under which engineers from those three
Departments were detailed for work in the Commission's field offices.
The 1930 amendments, however, left unchanged the Section 4(e) proviso
empowering individual Secretaries to impose conditions on licenses to
insure the adequate protection and utilization of reservations under
their supervision.
The purpose of the 1930 amendments was spelled out in the
President's message to Congress accompanying the proposed legislation.
Because the work of the Commission had greatly expanded since 1920,
the Secretaries were unable to devote sufficient time to fulfill their
responsibilities under the FWPA. Thus, the President recommended, and
Congress provided for, full-time Commissioners to replace them. See
Federal Power Commission: Hearings on H.R. 11408 Before the House
Comm. on Interstate and Foreign Commerce, 71st Cong., 2d Sess. 18
(1930) (hereinafter cited as 1930 House Hearings); S. Rep. 378, 71st
Cong., 2d Sess. 2-3 (1930); H.R. Rep. 1793, 71st Cong., 2d Sess. 2-3
(1930).
The legislative history makes clear that the 1930 amendments were
not intended to alter in any way the respective powers of the
Commission and the Secretaries. Thus, the Senate Report stated that
the purpose of the legislation was "to reorganize the Federal Power
Commission without adding to the existing authority of the
commission." S. Rep. 378, supra, at 2. Similarly, the remarks during
the floor debates confirm that the 1930 amendments did not enlarge the
powers of the Commission. See, e.g., 72 Cong. Rec. 8752 (1930)
(colloquoy between Sen. Robinson and Sen. Couzens); id. at 10332
(Rep. Clark). For example, in response to a question concerning
whether the bill would interfere with the requirement, in the second
proviso of Section 4(e), that plans for a dam affecting navigation
must be approved by the Chief of Engineers and the Secretary of War,
Representative Parker, Chairman of the House Committee and chief
proponent of the bill, stated (72 Cong. Rec. 10332 (1930)): "There is
no intention to take away from the War Department and from the Army
engineers the power to decide whether a dam will be detrimental to
navigation or not." Similarly, Representative O'Connor inserted into
the record a memorandum from the Chief of Engineers of the War
Department, who opposed the bill's enactment. The memorandum stated
that, by repealing Section 2 of the FWPA, the bill
takes from the Secretary of War and the Chief of Engineers all
authority and responsibility in connection with the
investigation of water-power developments in navigable waters or
on tributaries thereto, and confines their functions to the veto
power contained in section 4(d) (now Section 4(e)) of the act.
72 Cong. Rec. 10336, 10337 (1930). In short, there is no
indication that Congress in 1930 meant to reduce the authority of the
Secretaries under Section 4(e) to prescribe conditions for inclusion
in licenses with respect to projects on reservations within their
respective jurisdictions.
The Commission (Br. 25-27, 42 n.43) and petitioners (Br. 35-37)
rely upon isolated statements from the 1930 hearings that do not
mention the Secretaries' Section 4(e) authority. The focus of the
discussion during the hearings was on how the staff work of the new
commission would be carried out. Although the Chief Engineers of both
the Forest Service and the War Department argued that the engineering
work of the Commission should continue to be performed in the field by
employees of the individual departments (1930 House Hearings 14-15,
22-24), Agriculture Secretary Hyde and Interior Secretary Wilbur
believed that the Commission should have its own staff, not one under
the control of the departments, and that the interests of the
departments could be presented at hearings before the Commission (id.
at 32-33 (Secretary Hyde), 48-49 (Secretary Wilbur)). Neither
Secretary Wilbur nor Secretary Hyde specifically addressed the
authority of the individual Secretaries under Section 4(e) to
condition licenses for projects on reservations. In contrast,
Representative Hoch, a member of the House Committee, stated that the
bill "does not affect in any way the present law with reference to the
granting of permits or licenses, (or) the conditions under which they
are granted" (1930 House Hearings 28). See also id. at 46 (Rep.
Parks). Thus, even if portions of Secretary Wilbur's and Secretary
Hyde's remarks might be construed as suggesting that the Secretaries'
Section 4(e) conditioning authority should be curtailed, there is no
evidence that Congress in fact accepted that suggestion. See pages
29-30, supra. /35/
In short, the legislative history conclusively demonstrates that
the language of Section 4(e) is no accident of legislative
draftsmanship, but that Congress meant what it so clearly said:
licenses on reservations "shall be subject to and contain" the
conditions prescribed by the appropriate Secretary "for the adequate
protection and utilization" of the reservations.
D. The Commission's Administrative Interpretation has not been
Longstanding or Consistent and is not Entitled to Deference
Both the Commission (Br. 33) and petitioners (Br. 37-38) rely on
the Commission's prior administrative practice and construction to
support their interpretation. This construction, however, has itself
been inconsistent and is controverted by longstanding interpretations
advanced by other federal agencies. Accordingly, the Commission's
interpretation is not entitled to deference. See General Electric Co.
v. Gilbert, 429 U.S. 125, 140-146 (1976).
In 1929, the Commission's legal staff, in a formal memorandum to
the Commission's executive secretary, concluded that the Secretary of
the Interior had authority under Section 4(d) of the FWPA (now Section
4(e)) to impose conditions on a license necessary for the adequate
protection and utilization of an Indian reservation. Memorandum of
Sept. 20, 1929, COR 24,399-24,427. At issue was an application by the
Rocky Mountain Power Company for a license to build a power project on
the Flathead Indian Reservation. In order to settle certain claims
asserted by the United States, the Flathead Indians, and non-Indian
settlers on the Flathead Irrigation Project to a power site on the
Flathead River, the power company proposed to sell electric energy at
reduced rates to the irrigation project. In discussing how the rights
of the Indians could be protected in such a settlement, the
Commission's legal opinion stated:
In its ordinary jurisdiction over Indian tribal lands, the
Federal Power Commission when issuing licenses, has authority to
make a finding whether the project "will not interfere or be
inconsistent with the purpose for which such reservation was
created or acquired" and to "fix a reasonable annual charge for
the use thereof, and such charges may be readjusted at the end
of twenty years after the beginning of operations and at periods
of not less than ten years thereafter." In no case can the
provisions of the law be waived as to lands in Indian
reservations (Sec. 10(i)). The function of the Secretary of the
Interior in such cases, apart from his membership on the
Commission and his authority to designate personnel from his
department to perform work for the commission, is, under Sec.
4(d) (now Section 4(e)), to prescribe conditions to be inserted
in the license for the protection and utilization of the
reservation.
Memorandum at 23; COR 24,421.
The Commission (Br. 33) and petitioners (Br. 37) principally rely
upon Pigeon River Lumber Co., 1 F.P.C. 206 (1935). That case,
however, did not address the portion of the Section 4(e) proviso
dealing with secretarial conditions. The Commission held only that
under the first clause of Section 4(e)'s reservation proviso, it is
the obligation of the Commission, not the Secretary, to find that the
license will not interfere or be inconsistent with the purpose for
which the reservation was created. The Commission stated that, in
making the no interference/inconsistency determination, it would give
great weight to the judgment and recommendation of the Secretary of
the Interior. 1 F.P.C. at 209. We agree that this is the plain
import of the first clause of the reservation proviso, but we note
that the Commission in Pigeon River did not address the second clause,
dealing with secretarial conditions, which just as plainly vests
paramount authority in the respective Secretaries. /36/
Neither petitioners nor the Commission cite a single instance in
which a Secretary's Section 4(e) conditions were rejected by the
Commission at any time prior to its 1975 decision in Pacific Gas &
Electric Co., 53 F.P.C. 523. /37/ On the other hand, as early as
1935, the Secretary of the Interior, through the Office of Indian
Affairs, asserted that his Section 4(e) conditions were binding on the
Commission. See Pigeon River, 1 F.P.C. at 209. Likewise, the
Secretary of Agriculture made his views known to Congress in 1968 when
it was considering amending Section 15 of the FPA, 16 U.S.C. 808, to
authorize the Commission to license projects for nonpower use. The
Secretary informed the House Committee that the Commission had agreed
to consult with his Department regarding the issuance of any licenses
for nonpower purposes that affected national forests. Moreover, the
Secretary stated that the Commission had agreed that a license for
such use
will be issued only with the consent of this Department and
subject to such conditions as we deem necessary for the adequate
protection and utilization of the lands under our jurisdiction.
H.R. Rep. 1643, 90th Cong., 2d Sess. 14-15 (1968). See also Pacific
Gas & Electric Co., 53 F.P.C. at 526 (Secretary of Agriculture
asserted that Section 4(e) conditions were binding).
The division of responsibility between the respective Secretaries
and the Commission -- and the mandatory nature of the secretarial
conditions -- was also recognized by the report of the Public Land Law
Review Commission, One Third of the Nation's Land: A Report to the
President and to the Congress 154 (1970):
(T)he Federal Power Commission is given the ultimate authority
to decide whether a project having an impact on a Federal
reservation shall be licensed, presumably even over the holding
agency's objection (the role fulfilled by Congress for Bureau
and Corps' projects), although the Commission must include such
conditions in the license as the holding agency considers
necessary.
This conclusion is especially significant because representatives
of the Federal Power Commission served as members of the Advisory
Council to the Public Land Law Review Commission established pursuant
to 43 U.S.C. (1970) ed.) 1396. /38/
As the foregoing discussion demonstrates, there is no consistent,
longstanding administrative construction of Section 4(e) by the
Commission to which to defer. The current interpretations of the
affected administrative agencies are in conflict. In these
circumstances, prior administrative practice and construction count
for naught. See General Electric Co. v. Gilbert, 429 U.S. at 140-146.
E. Review of the Reasonableness of the Secretary's Section 4(e)
Conditions Properly Rests With the Court of Appeals, not the
Commission
The Secretary of the Interior has consistently adhered to the
position that his authority under Section 4(e) to condition licenses
that affect reservations is subject to certain limitations. By its
terms, Section 4(e) itself requires that any conditions prescribed by
the Secretary for inclusion in a license must be "necessary for the
adequate protection and utilization of such reservations."
Furthermore, the Secretary's conditions cannot be imposed arbitrarily;
they must be reasonable and supported by evidence in the record.
In view of the highly contested nature of the licensing proceeding
in this case, the Secretary submitted his proposed conditions for
comment early in the administrative proceeding and reserved the right
to change or modify them based upon the record as it developed (J.A.
49, 61). During the evidentiary hearing, petitioners and the
Commission staff commented upon the proposed conditions. Three high
ranking officials from the Department of the Interior testified and,
in response to questioning, they agreed to modify and re-examine
certain conditions (J.A. 105-201). Subsequently, the Secretary
submitted revised conditions accompanied by detailed explanations
(J.A. 218-242).
Because the Commission concluded that it was not required to accept
the Secretary's conditions as propounded (Pet. App. 143-155), it
developed its own conditions for inclusion in the license (id. at
170-190, 219-221). On review, the court of appeals concluded only
that the Secretary's conditions were binding on the Commission; it
did not determine whether the Secretary's conditions were consistent
with the statutory mandate, supported by evidence in the record, or
reasonable. Hence, the substance of those conditions is not properly
before this Court. /39/
All agree that the Secretary's conditions must be reasonably
related to the adequate protection and utilization of the affected
reservation. Both the Commission (Br. 39-43) and petitioners (Br.
38-39) argue, however, that the FPA's judicial review provision
requires the Commission, rather than the court of appeals, to have the
initial responsibility for reviewing the Secretary's conditions under
the reasonableness standard. This argument is insubstantial.
Judicial review of Commission orders under the FPA is established
by Section 313(b) of the FPA, 16 U.S.C. 825l(b), which was first
enacted in 1935, 15 years after enactment of Section 4(e). Nothing in
Section 313(b) amended Section 4(e), or made any pretense of changing
the binding nature of the Secretary's Section 4(e) conditions.
The Commission notes (Br. 40) that its licensing orders are
reviewable by the court of appeals to determine whether they have a
reasonable basis in law and are supported by substantial evidence. By
the same token, we submit, any secretarial conditions that are
included in a license, and are thereby made part of the Commission's
order, are subject to initial review by the court of appeals under
these same standards. That the Commission's orders are reviewable
under Section 313(b) only begs the question whether the Secretary's
Section 4(e) conditions are binding on the Commission. The statute
charges the Secretary, not the Commission, with prescribing conditions
that the Secretary deems to be necessary. Moreover, because the
Secretary's conditions must be "contain(ed)" in the license, the court
of appeals must review those conditions, not the Commission's
substitutes. In other words, the Secretary's conditions are entitled
to a presumption of validity and must be affirmed if they are
supported by substantial evidence and are within the scope of the
authority delegated to the Secretary. /40/
II. SECTION 4(e)'s RESERVATION PROVISO PROTECTS THE
RESERVED WATER RIGHTS OF THE PAUMA, PALA AND YUIMA
RESERVATIONS
Section 3(2) of the FPA, 16 U.S.C. 796(2), defines the term
"reservations" as used in the FPA to mean:
national forests, tribal lands embraced within Indian
reservations, military reservations, and other lands and
interests in lands owned by the United States, and withdrawn,
reserved, or withheld from private appropriation and disposal
under the public land laws; also lands and interests in lands
acquired and held for any public purposes; but shall not
include national monuments or national parks.
The Act's definition of "reservations" does not limit the term to
the physical soil itself. It expressly includes "interests in lands"
that are owned by the United States or that are "acquired and held for
any public purpose." Relying on this broad statutory language, the
court of appeals unanimously held that Section 4(e)'s reservation
proviso applies not only to those reservations that are physically
occupied by the project works, but also to the Pauma, Pala and Yuima
Reservations, which are situated in the San Luis Rey River watershed
directly downstream from petitioners' diversion dam, and whose water
rights are affected by the project (Pet. App. 25-28). /41/
Neither the Commission nor petitioners appear to challenge the
court of appeals' ruling (Pet. App. 25-26) that the water rights of
the downstream reservations are encompassed within the definition of
"reservations" in the FPA. /42/ Instead, relying on the portion of
the Section 4(e) proviso that refers to "licenses * * * issued within
any reservation", they contend that application of the proviso is
limited to reservations physically occupied by the facilities of a
project. Although, as the court below noted (Pet. App. 26), "the word
'within' tends to paint a geographical picture," other provisions of
the FPA provide evidence that the scope of Section 4(e) is not so
limited. For instance, Section 23(b) of the Act, 16 U.S.C. 817,
provides that a project on non-navigable waters over which Congress
has jurisdiction under its Commerce Clause powers must be licensed by
the Commission if any public lands or reservations "are affected" by
the project. Section 23(b) thus represents a deliberate congressional
choice to invoke the protective provisions of the FPA when a project
"affects" a reservation but is not physically "upon any part of" the
reservation. It would make no sense to conclude that Congress
directed the Commission to exercise its jurisdiction in such instances
if Congress did not also intend to afford the "affected" reservation
the full benefit of Section 4(e)'s proviso. /43/
There can be no doubt that issuance of a license to petitioners
would "affect" the downstream reservations by impairing the reserved
water rights acquired by the Bands when their reservations were
created. See Arizona v. California, 373 U.S. 546 (1963); Cappaert v.
United States, 426 U.S. 128 (1976). The Pala Reservation is located
directly on the San Luis Rey River (Pet. App. 308). Although the
Pauma and Yuima Reservations are not located on the river itself, they
overlie the Pauma and Pala Basins, which are groundwater reservoirs
providing year-round sources of water (Pet. App. 122). The Commission
expressly acknowledged that the project "diverts water into the
Escondido Canal which would otherwise percolate into the Pauma and
Pala Basins" (id. at 123 n.119). The continued diversion of this
water, together with the importation of poorer quality water from
outside the area, would result in the rapid deterioration of the
Basins' groundwater quality (J.A. 208).
Petitioners (Br. 46) and the Commission (Br. 37-38) nevertheless
argue that the downstream reservations are not subject to the
protections of the Section 4(e) proviso because the Commission is not
empowered "to adjudicate" water rights. But adjudication of water
rights is a far different matter from formulating conditions for the
protection and utilization of a reservation. The Commission itself
developed conditions for water deliveries in response to the claims of
the Secretary and the Bands that any water that petitioners are
licensed to take through Indian lands that could otherwise be used by
the Bands "'necessarily interferes with the utilization of the
reservation by the Indians'" (Pet. App. 173). /44/ The Commission
found ample authority under Section 10(a) of the FPA "to require the
modification of water rights incident to a project if such
modification is necessary" to enable it to make the no
interference/inconsistency determination required by the first clause
of the Section 4(e) proviso (Pet. App. 174). Such conditions, the
Commission concluded, were the "price in water of the power license
issued herein" (id. at 176. /45/
Amicus Edison Electric Institute contends (Br. 22-23) that the
downstream reservations are sufficiently protected by Section 10(a) of
the FPA and that there is no need to apply the protections of Section
4(e) to these reservations. See also Pet. Br. 46. Although Section
10(a) does require the Commission to assess the "public interest"
(Udall v. FPC, 387 U.S. at 450), the availability of Section 10(a)
does not render the Section 4(e) reservation proviso superfluous.
Section 10(a)'s public interest standard requires a balancing of the
many competing interests involved, whereas Section 4(e) embodies a
specific congressional mandate designed to protect reservations. As
the court of appeals observed (Pet. App. 27-28), it makes no sense to
apply Section 4(e)'s protective provisions to a reservation that
suffers a minimal physical intrusion, but not to a downstream
reservation whose entire water supply may be diverted.
III. PETITIONERS MUST COMPLY WITH THE RIGHT-OF-WAY
REQUIREMENTS OF SECTION 8 OF MIRA
At issue here are two intertwined notions: one involving aspects
of tribal sovereignty; the other involving Congress's exercise of its
power to determine if and how Indian lands may be utilized. This
Court has previously recognized that one of the purposes for which
Congress created Indian reservations was to set aside territory over
which tribes may exercise sovereignty and have "the right * * * to
make their own laws and be ruled by them." White Mountain Apache Tribe
v. Bracker, 448 U.S. 136, 142 (1980). Among the most significant
aspects of the sovereignty of an Indian tribe is its inherent power,
absent contrary treaty provisions or congressional enactments, to
exclude non-members from the reservation. See Merrion v. Jicarilla
Apache Tribe, 455 U.S. 130, 137 (1982); Quechan Tribe of Indians v.
Rowe, 531 F.2d 408, 410 (9th Cir. 1976); Powers of Indian Tribes, 55
Interior Dec. 14, 48-50 (1934).
At the same time, Congress has the power to legislate with respect
to tribal use and occupancy of reservation lands. See Lone Wolf v.
Hitchcock, 187 U.S. 553, 565 1903); Cherokee Nation v. Southern
Kansas Ry., 135 U.S. 641, 656 (1890). Congress may, consistent with
constitutional limitations (United States v. Sioux Nations of Indians,
448 U.S. 371, 415 (1980)), grant interests in Indian lands, including
rights-of-way. Nadeau v. Union Pac. R.R., 253 U.S. 442, 446 (1920);
Missouri, K. & T. Ry. v. Roberts, 152 U.S. 114, 116-117 (1894). But,
in construing any statute dealing with the alienation of interests in
Indian lands, we cannot lightly assume that Congress meant to dispense
with tribal concurrence. And, at all events, the statutory
requirements must be strictly followed. See Southern Pacific
Transportation Co. v. Watt, 700 F.2d 550, 552, 556 (9th Cir.), cert.
denied, No. 83-180 (Nov. 7, 1983).
A. Prior to Enactment of the FPA, Section 8 of MIRA Provided the
Exclusive Method for Obtaining Rights-Of-Way Across Mission Indian
Reservations for Water Conveyance Facilities
In the 1890's and early 1900's, Congress enacted a series of
statutes authorizing rights-of-way across the public domain for
various purposes. Some of these provisions applied generally to
federal lands, whether reserved for special purposes or held as public
lands. /46/ Other statutes were directed specifically to granting
rights-of-way across Indian reservations. /47/ In either case, when
the right-of-way affected an Indian reservation, authority to make the
grant almost invariably was vested in the Secretary of the Interior.
Until 1948, there was no general statutory requirement of tribal
consent. That year, Congress enacted a general Indian right-of-way
statute, 25 U.S.C. 323 et seq., which consolidated the authority of
the Secretary of the Interior to grant rights-of-way across Indian
lands (25 U.S. 323) and required the consent of most tribes /48/ prior
to the grant of a right-of-way across tribal lands (25 U.S.C. 324).
/49/ By regulation, the Secretary now requires the consent of all
tribes to the granting of rights-of-way over tribal lands. See 25
C.F.R. 169.3(a).
The Mission Indian Relief Act of 1891 represents an exception to
the general proposition that tribal consent to rights-of-way was not
statutorily required prior to 1948. Section 8 of MIRA, 26 Stat. 714,
authorizes rights-of-way across Mission Indian reservations for only
two purposes: water conveyance facilities and railroads. With regard
to the former, Section 8 provides that, prior to the issuance of a
trust patent for a reservation, /50/ the Secretary of the Interior is
authorized to grant rights-of-way across the reservation for the
construction of water conveyance facilities, but only upon the
condition that the Indians owning the reservation "shall * * * be
supplied with sufficient quantity of water for irrigating and domestic
purposes" (26 Stat. 714). After issuance of any tribal patent, the
power to grant a right-of-way is vested directly with the Band:
Subsequent to the issuance of any tribal patent, or of any
individual trust patent * * *, any citizen of the United States,
firm, or corporation may contract with the tribe, band or
individual for whose use and benefit any lands are held in trust
by the United States, for the right to construct a flume, ditch,
canal, pipe, or other appliances for the conveyance of water
over, across, or through such lands, which contract shall not be
valid unless approved by the Secretary of the Interior under
such conditions as he may see fit to impose.
26 Stat. 714. /51/
In Rincon Band of Mission Indians v. Escondido Mutual Water Co.,
Nos. 69-217-S, 72-276-S, and 72-271-S (S.D. Cal. Jan. 10, 1980), /52/
the district court found that "MIRA was an attempt by Congress to deal
in a comprehensive fashion with the historical problems that the
Mission Indians had experienced in securing reservation lands free
from encroaching white settlers" (slip op. 3). The court concluded
(slip op. 11) that Section 8 MIRA was the "exclusive means" for
obtaining canal rights-of-way across Mission Indian Reservations.
/53/ The court explained (slip op. 11):
MIRA's lengthy legislative history reveals that Congress'
primary concern in enacting the statute was to safely secure
reservation lands for the Mission Indians. The statute sets
forth comprehensive procedures for establishing and securing the
reservations. Section 8 is properly read as a section designed
to protect and preserve the integrity of the reservations once
established by creating a specific procedure for permitting
others to use Mission Indian lands.
Petitioners argue (Br. 23-26) that Section 8 of MIRA is not the
exclusive method for obtaining canal rights-of-way across the Mission
Indian Reservations, citing Interior's alleged prior administrative
practice. That administrative practice, however, is not entitled to
any weight because it did not focus on the effect of Section 8.
Petitioners rely upon a 1908 permit pursuant to 43 U.S.C. 946
granting canal rights-of-way across the reservations (C.A. App. 472),
a 1914 contract granting rights-of-way for power generation and
transmission purposes (J.A. 22), and the Commission's issuance of the
original license for Project No. 176 in 1924 and subsequent license
amendments. There is no evidence, however, that when Interior granted
the 1908 permit, it considered the effect of Section 8 of MIRA. /54/
The grant of rights-of-way for power transmission purposes in the 1914
contract likewise has no bearing on the applicability of Section 8 to
water conveyance facilities because Section 8 does not purport to
cover electric transmission lines. Finally, petitioners do not cite
any evidence that the Commission or Interior considered the
relationship between Section 8 of MIRA and the FPA at any time prior
to the initiation of this proceeding in 1969.
Because no agency has ever "focus(ed) closely on the operative
impact" of Section 8 of MIRA, prior administrative practice is of no
assistance in assessing the application of that statute in this case.
Weinberger v. Salfi, 422 U.S. 749, 760 n.6 (1975). See SEC v. Sloan,
436 U.S. 103, 117-188 (1978).
B. The FPA Did Not Repeal Section 8 of MIRA
Section 8 of MIRA is a specific statute governing rights-of-way for
water conveyance facilities across the Mission Indian reservations of
California. It was enacted for the express purpose of securing for
the Bands a "sufficient quantity of water for irrigating and domestic
purposes" (26 Stat. 714). Congress sought to achieve this objective
by requiring the Bands' consent to any rights-of-way for water
conveyance facilities across their reservations. As we have noted,
the provision was designed to prevent non-Indians from encroaching on
Mission Indian lands and from stealing Indian water. See pages 2-3,
45-46, supra. Presumably, coercive or improvident arrangements would
be avoided if both tribal consent and Secretarial approval were
required for the granting of canal rights-of-way.
In sum, Section 8 of MIRA is a very limited statute addressing a
particularized situation with a specific remedy, geographically
confined to one small group of Indian reservations in a single state.
On the other hand, the FPA is a general statute that authorizes water
power development throughout the Nation. As this Court has previously
noted, it is a basic principle of statutory construction that a
"statute dealing with a narrow, precise, and specific subject is not
submerged by a later enacted statute covering a more generalized
spectrum." Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976).
Repeals by implication are not favored in any case. See United States
v. United States Continental Tuna Corp., 425 U.S. 164, 168 (1976).
But that "cardinal rule" has special force in circumstances like those
presented here. Unless it is unavoidable, "a specific statute will
not be controlled or nullified by a general one, regardless of the
priority of enactment." Morton v. Mancari, 417 U.S. 535, 550-551
(1974). /55/
It is beyond question that the primary purpose of Project No. 176
is to convey water, not to produce power. This crucial fact was
recognized by the administrative law judge (J.A. 357-366), by the
Commission (Pet. App. 132) and by the court of appeals (id. at 13),
and was virtually conceded by petitioners (J.A. 360-361). That is, of
course, the special focus of Section 8 of MIRA: under what conditions
should water conveyance facilities be permitted on Mission Indian
reservations. In this context, only the clearest indication that
Congress so intended would justify disregarding the very specific
requirement of tribal consent so pointedly enacted in MIRA.
There is, in fact, no reason whatever to read the FPA as a partial
repeal of Section 8 of MIRA. Section 29 of the FPA, 16 U.S.C. 823, is
of no assistance in this inquiry, because it does not mention, let
alone expressly repeal, Section 8 of MIRA. It only repeals all
earlier acts that are "inconsistent" with the FPA. And there is no
tension -- much less any irreconcilable conflict -- between the MIRA
requirement of tribal consent for canal rights-of-way and the
jurisdiction given to the Commission by the Power Act. Of course,
after enactment of the FPA, neither the Mission Indians nor the
Secretary could any longer authorize water power projects on
reservation lands by simple contract. Henceforth, a Commission
license was also required. But there is no ground to suppose the new
requirement was meant to erase the older condition of tribal consent.
Obviously, the two provisions can co-exist.
Section 4(e) of the Power Act indicates no contrary legislative
intent. Authorizing the Commission to issue licenses for project
works upon reservations, including Indian reservations, logically does
not preclude tribal consent where Congress has previously legislated
such a requirement. Indeed, as the court of appeals concluded, the
insistence of Section 4(e) that "the license will not interfere or be
inconsistent" with the reservation's purpose "would be meaningless if
Congress meant to extinguish preexisting Indian rights wherever they
came into conflict with the Commission's comprehensive jurisdiction
over power projects on federal lands" (Pet. App. 21, citing Lac Courte
Orielles Band of Lake Superior Chippewa Indians v. FPC, 510 F.2d 198,
210-212 (D.C. Cir. 1975)).
The legislative history of the FPA cited by the Commission (Br. 27)
and petitioners (Br. 14-16) is no more persuasive. A proposed
amendment would have required tribal consent to the use of reservation
lands for power projects in the case of Indians whose reservations
were created by treaty. See 59 Cong. Rec. 1564 (1920). Although
initially adopted by the Senate, the amendment was deleted in
conference. See H.R. Rep. 910, 66th Cong., 2d Sess. 8 (1920). In
deleting this amendment, however, Congress merely rejected adding a
new requirement that would have "singled out" water power from all
other uses of reservation lands for tribal consent (ibid.). /56/ It
hardly follows that Congress also meant to extinguish already existing
consent requirements under other laws, applicable to non-treaty
reservations, like those of the Mission Indians.
In sum, there is no evidence of a "clear and manifest" intent by
Congress to repeal Section 8 of MIRA. In addition to complying with
the FPA, therefore, petitioners must also obtain the consent of the
Bands whose reservations are traversed by its water conveyance
facilities.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
REX E. LEE
Solicitor General
F. HENRY HABICHT, II
Assistant Attorney General
LOUIS F. CLAIBORNE
Deputy Solicitor General
ELLIOTT SCHULDER
Assistant to the Solicitor General
DIRK D. SNEL
JAMES C. KILBOURNE
Attorneys
FEBRUARY 1984
/1/ The term "Commission" refers to the Federal Power Commission
prior to October 1, 1977, and to the Federal Energy Regulatory
Commission thereafter.
/2/ The House Report included the following observations with
respect to the plight of the Mission Indians (H.R. Rep. 3251, supra,
at 3-4):
Never before in any other Indian agency have I heard so many
cases of complaint concerning land claims, land extortion, land
stealing, shifting of lines, unknown boundaries, invasion of
reservations, crowding back the Indians upon the mountains,
infringement upon water rights, etc. * * *
Encroaching white men should be put off from lands belonging
to Indians. The stealing of water from the Indians should be
stopped * * *.
See also H.R. Rep. 2556, 49th Cong., 1st Sess. 1-2 (1886); 22
Cong. Rec. 306-307 (1890).
/3/ In their complaint, the Bands sought (1) a declaratory judgment
that the rights-of-way agreements are void; (2) an injunction
prohibiting diversion of the waters of the San Luis Rey River into the
Escondido Canal; and (3) substantial damages. On January 10, 1980,
the district court entered an order granting partial summary judgment
in favor of the Bands and voiding portions of the disputed contracts.
The court of appeals refused to permit an interlocutory appeal of that
order, and the case remains pending before the district court (Pet.
App. 7). On December 10, 1980, the district court entered a further
order granting partial summary judgment in favor of the Bands with
respect, inter alia, to certain water rights issues. We are lodging
copies of the district court's opinions with the Clerk of the Court.
/4/ Mutual's license expired in 1974. Since then, it has operated
Project No. 176 under annual licenses issued pursuant to Section 15(a)
of the FPA, 16 U.S.C. 808(a).
/5/ Annual charges are the sums paid by a licensee for use of
reservation lands pursuant to the provisions of Section 10(e) of the
FPA, 16 U.S.C. 803(e).
/6/ Section 10(i) of the FPA, 16 U.S.C. 803(i), authorizes the
Commission to waive certain conditions and requirements in issuing a
minor license for a complete project with a capacity not exceeding
2,000 horsepower (which is the equivalent of 1,500 kw).
/7/ Section 14(b) of the FPA authorizes the Commission to recommend
to Congress that the federal government take over a project following
expiration of the project's license. If Congress enacts legislation
to that effect, the project is operated by the government upon payment
to the original licensee of its net investment in the project and
certain severance damages. See Pet. App. 312-327.
/8/ Section 15(b) of the FPA authorizes the Commission to grant a
license for use of a project as a "nonpower" facility if it finds the
project no longer is adapted to power production. In that event, the
new licensee must make the same payments to the original licensee that
are required of the United States pursuant to Section 14(b).
/9/ The Commission held, however, that any retroactive compensation
for use of reservation lands other than as authorized by Mutual's 1924
license must be sought in federal district court (Pet. App. 230).
/10/ In including these conditions, the Commission found that the
original license for Project No. 176 interfered and was inconsistent
with the purposes for which the La Jolla and Rincon Reservations were
established (Pet. App. 176-182). The Commission noted (id. at 176)
that these reservations
were created for the purpose of providing permanent homes for
the members of those respective Bands where they can be
economically self-sufficient. The concept of economic
self-sufficiency requires that the * * * reservations have
adequate supplies of water for domestic, agricultural,
stockwatering and small commercial consumption by the members of
those Bands who choose to earn their livings on reservation
lands.
/11/ The Secretary and the Bands subsequently challenged the
adequacy of these conditions, but the court of appeals did not address
that issue and it is not before this Court.
/12/ The Commission rejected the Secretary's Section 4(e)
conditions with respect to the Pala, Pauma and Yuima Reservations
because the project works are not located within those reservations
(Pet. App. 146-147).
/13/ Section 29 provides that "(a)ll Acts or parts of Acts
inconsistent with this chapter are repealed * * * ." 16 U.S.C. 823.
/14/ Section 9(b) of the FPA, 16 U.S.C. 802(b), requires applicants
for water power licenses to submit satisfactory evidence to the
Commission that they possess the necessary water rights to operate the
project as authorized in a license.
/15/ The Secretary of War's authority stemmed principally from the
Rivers and Harbors Appropriation Act of 1899, Ch. 425, 30 Stat. 1151,
which required the consent of Congress, the Secretary of War (now
Army), and the Chief of Engineers prior to the construction of any
dam, bridge, or similar facility in the navigable waters of the United
States, and which prohibited the obstruction of the navigable capacity
of any waters of the United States even if such obstruction occurred
on nonnavigable tributaries. See Sections 9 and 10, codified at 33
U.S.C. 401 and 403. In 1906 and 1910, Congress enacted the General
Dam Acts, which specified conditions under which Congress would grant
its permission for the construction of dams in navigable waters. Act
of June 21, 1906, ch. 3508, 34 Stat. 386; Act of June 23, 1910, ch.
360, 36 Stat. 593. Both of these Acts required the Secretary of War
and the Chief of Engineers to approve plans and specifications for all
dams and accessory works.
/16/ The Act of Mar. 3, 1891, ch. 561, Section 18, 26 Stat. 1101,
as amended, 43 U.S.C. 946, authorized the Secretary of the Interior to
grant rights-of-way through the public domain for ditches, canals and
reservoirs for purposes of irrigation. Development of electricity
under this act was a subsidiary purpose. In 1896, Congress expressly
authorized the Secretary to grant rights-of-way upon public lands and
forest reserves "for the purpose of generating, manufacturing, or
distributing electric power." (Act of May 14, 1896, ch. 179, 29 Stat.
120, as amended, 43 U.S.C. 957). See also Act of Feb. 15, 1901, ch.
372, 31 Stat. 790, as amended, 43 U.S.C. 959; Act of Mar. 4, 1911,
ch. 238, 36 Stat. 1253, as amended, 43 U.S.C. 961. These Acts were
repealed in 1976 insofar as they were applicable to the issuance of
rights-of-way through public lands and lands within the National
Forest System. Act of Oct. 26, 1976, Pub. L. No. 94-579, Section
706(a), 90 Stat. 2793.
/17/ In 1905, Congress transferred responsibility for the national
forests from Interior to the Forest Service of the Department of
Agriculture. Act of Feb. 1, 1905, Ch. 288, Section 1, 33 Stat. 628,
codified at 16 U.S.C. 472. Thereafter, the Secretary of Agriculture
issued permits for rights-of-way across national forests pursuant to
the statutes listed in note 16, supra.
/18/ See, e.g., H.R. 16053, 63d Cong., 2d Sess. (1914) (Adamson
Bill) (navigable waters); H.R. 16673, 63d Cong., 2d Sess. (1914)
(Ferris Bill) (public lands); H.R. 408, 64th Cong., 1st Sess. (1915)
(Ferris Bill) (public lands); S. 3331, 64th Cong., 1st Sess. (1915)
(Shields Bill) (navigable waters). See also Water Power Bill:
Hearing on H.R. 16673 Before the Senate Comm. On Public Lands, 63d
Cong., 3d Sess. (1915) (hereinafter cited as 1914-1915 Hearings).
Chemehuevi Tribe of Indians v. FPC, 489 F.2d at 1220 n. 61; Kerwin,
supra, at 172-216.
/19/ Water Power: Hearings Before the House Comm. on Water Power,
65th Cong., 2d Sess. (1918) (hereinafter cited as 1918 Hearings).
/20/ "Project works" are defined as all physical structures of a
project, including power houses, water conduits, dams and appurtenant
works and structures. 16 U.S.C. 796(11) and (12).
/21/ The FPA defines "reservations" to include "national forests,
tribal lands embraced within Indian reservations, military
reservations, and other lands and interests in lands owned by the
United States and withdrawn, reserved, or withheld from private
appropriation and disposal under the public land laws; also lands and
interests in lands acquired and held for any public purposes." 16
U.S.C. 796(2).
/22/ Similarly, Section 11(a) of the FPA, 16 U.S.C. 804(a),
provides that the Commission may require a licensee to construct
improvements for navigation purposes "in accordance with plans and
specifications approved by the Chief of Engineers and the Secretary of
the Army."
/23/ More recently, Congress has required the Commission, in
granting exemptions to the FPA's licensing requirements, to include in
its exemptions conditions prescribed by the Fish and Wildlife Service
and by the comparable state agency to prevent loss of, and damage to,
fish and wildlife resources. 16 U.S.C. 823a(c). See also 16 U.S.C.
2705(d).
/24/ Petitioners go so far as to contend (Br. 42-44) that Section
4(e)'s reservation proviso does not even apply here because this is a
relicensing proceeding pursuant to Section 15(a) of the FPA, 16 U.S.C.
808(a). This argument must be rejected out of hand, since petitioners
failed to preserve this objection. The Commission applied Section
4(e) after finding that the project for which petitioners sought a
license was materially different from that originally licensed (Pet.
App. 133-137). Because petitioners did not object to this finding in
their petitions for rehearing to the Commission (COR 25,834-25,926),
consideration of that issue is foreclosed. 16 U.S.C. 825l(b) (COR
refers to the certificate of record in the court of appeals.) See
Greene County Planning Board v. FPC, 528 F.2d 38, 45-46 (2d Cir.
1975).
/25/ Congress easily could have expressed a contrary intention by
providing that the Secretary may "recommend" conditions for inclusion
in the license. See Section 14(b) of the FPA, 16 U.S.C. 807(b), which
provides that any agency may recommend that the United States exercise
its right to take over any project.
/26/ The Secretary of the Interior does not claim authority to
impose Section 4(e) conditions on every Commission project. His
Section 4(e) authority is activated only in the case of reservations
under his supervision. In the instant proceeding, the reservations
involved are all Indian reservations under the supervision of
Interior. But the term "reservations" also includes, inter alia,
national forests under the supervision of the Department of
Agriculture and military reservations under the supervision of the
Department of Defense. 16 U.S.C. 796(2). Thus, when national forests
or military reservations are included within licenses, the Secretaries
of those departments have authority to develop conditions for the
protection and utilization of those reservations. As discussed below
(page 38, infra), the Secretaries' Section 4(e) authority is limited
to developing conditions that are reasonably necessary for the
adequate protection and utilization of the reservations.
/27/ Petitioners also cite (Br. 34 n. 45) Section 10(i) of the FPA,
16 U.S.C. 803(i), which permits the Commission to waive certain
conditions and requirements in issuing licenses for minor projects.
Although Project No. 176 qualifies as a minor project in view of the
minimal amount of power it produces, the Commission expressly refused
to waive the Section 4(e) requirements in this case (Pet. App. 137).
/28/ This proviso parallels the second proviso of Section 4(e),
which likewise makes protection of the navigable waterways paramount
to power development. See, pages 19-20, supra.
/29/ The Court's statement in Tuscarora was made in the context of
determining whether reservation lands owned in fee by an Indian tribe,
which the Court concluded did not constitute a "reservation" as that
term is defined in the FPA, were subject to condemnation under Section
21 of the FPA, 16 U.S.C. 814. In First Iowa, the Court concluded that
Section 9(b) of the FPA, which requires a license applicant to submit
satisfactory evidence that it has complied with state laws respecting
water appropriation, use of streambed, and the right to engage in the
power business, does not require the applicant to comply with other
state laws that conflict with the authority delegated to the
Commission in the FPA.
/30/ Although petitioners recognize that the thrust of Senator
Walsh's remarks were that "Interior could 'veto' the use of
reservation land" (Pet. Br. 35 n.46), they attempt to place Senator
Walsh's statement "in perspective" by pointing to comments
subsequently made by Senator Myers. But those comments refer only to
the circumstances under which Senator Myers thought the Secretary
would vote to issue a license using reservation lands. Unlike Senator
Walsh, Senator Myers did not address the question whether Section 4(e)
required Interior's consent to a project involving an Indian
reservation, although the logical implication of Senator Myers'
statement that the Secretary would "resist" any application that was
not "fair and right and reasonable" to the Indians (59 Cong. Rec. 1566
(1920)) is that he too believed Interior's consent was required.
/31/ Indeed, amici American Public Power Association, et al.,
concede (Br. 11 n.19) that this legislative history provides support
for our interpretation.
/32/ Likewise, the statements in the debates cited by the
Commission (Br. 23-25 & n.29) were made during discussion of Section 2
of the proposed bill, not Section 4(e). The discussion concerned how
the Commission was to undertake its work, i.e., whether the Commission
could draw upon the staffs of all three departments, or whether each
Secretary individually would "run with an iron hand" the lands under
his own jurisdiction. 56 Cong. Rec. 9667 (1918) (Rep. Ferris).
By the same token, the portions of Secretary Houston's testimony on
which petitioners rely (Br. 34-35) focused not on the Section 4(e)
proviso, but on other matters, such as the desirability of reposing
authority in a commission composed of three Secretaries rather than in
a single executive (1918 Hearings 676-677), and the scope and
implementation of Section 10(a) of the Act (1918 Hearings 678).
/33/ The 1921 House report cited by the Commission (Br. 25) does
not address the Secretary of the Interior's authority under Section
4(e). The Secretary objected to the inclusion of national parks and
monuments within the FWPA because he believed that Congress should
determine on a case-by-case basis whether any hydroelectric
development should occur in national parks or monuments. H.R. Rep.
1299, 66th Cong., 3d Sess. 2 (1921).
/34/ The 1920 FWPA had authorized the Commission to hire only an
executive secretary. Act of June 10, 1920, ch. 285, Section 2, 41
Stat. 1063. The 1930 amendments gave the Commission additional
authority to hire a chief engineer, a general counsel, a solicitor, a
chief accountant, and such other "officers and employees as are
necessary" to carry out its functions. Section 2, 46 Stat. 798.
/35/ The Commission also relies (Br. 25-26) upon statements made by
O. C. Merrill and James Lawson, then Acting Chief Counsel of the
Commission. Investigation of Federal Regulation of Power: Hearings
on S. Res. 80 and S. 3619 Before the Senate Comm. on Interstate
Commerce, 71st Cong., 2d Sess., Pt. 2 (1930) (hereinafter cited as
1930 Senate Hearings). Merrill who by that time had left the
Commission (1930 Senate Hearings 211), advocated that the Commission's
field work should be done by the three departments, but that the
departments would have "no final responsibility" in these matters (id.
at 280). He did not address what authority the departments would have
under Section 4(e). Likewise, Lawson's statement that the Commission
already had the power to override a departmental head as to "the
consistency of a license with the purpose of any reservation" (id. at
358) has no bearing upon a Secretary's authority to condition a
license for the adequate protection and utilization of reservation.
Section 4(e) makes these two functions separate: the making of a "no
interference or inconsistency" finding is the responsibility of the
Commission; the promulgation of conditions for the adequate
protection and utilization of the reservation is the responsibility of
the individual Secretaries. Indeed, in a memorandum to the
Commission's executive secretary written one year earlier, Lawson
concluded that the Secretary of the Interior had authority under
Section 4(d) of the FWPA (now Section 4(e)), apart from his authority
as a Commission member, "to prescribe conditions to be inserted in the
license for the protection and utilization of the reservation."
Memorandum of Sept. 20, 1929, at 23; COR 24,421. See page 33, infra.
/36/ The Pigeon River proceeding involved not the issuance of a
license, but an application for a preliminary permit pursuant to
Section 4(f) and 5 of the FPA, 16 U.S.C. 797(f) and 798. Hence, the
reservation proviso was not applicable, and no secretarial conditions
had been submitted to the Commission. 1 F.P.C. at 209. The Office of
Indian Affairs contended that any preliminary permit that might be
issued "would be made untenable because of the conditions which the
Secretary (of the Interior) would feel impelled to include in the
license for the protection of the Indians" (ibid.). The Commission
did not address this potential problem. Its remarks were confined to
the portion of the proviso requiring a finding of non-interference and
consistency with the reservation's purposes. Nothing was said about
the relative powers of the Secretary and the Commission to impose
license conditions. Because the preliminary permit was denied on
other grounds (id. at 210-211), the Commission had no occasion in
Pigeon River to discuss the issue presented in this case.
/37/ The remaining Commission cases which they cite (FERC Br. 33;
Pet. Br. 37 n.47) are all distinguishable. In Pacific Gas & Electric
Co., 6 F.P.C. 729 (1947), the Commission deferred for further study
conflicting recommendations by the Secretary of Agriculture and the
California Division of Fish and Game for the support of fish life in
certain national forests. The Commission's order does not state
whether the Secretary's "recommendations" were proffered pursuant to
his Section 4(e) conditioning authority or whether the Secretary
agreed to further studies. In Southern California Edison Co., 8
F.P.C. 364 (1949), the Commission requested the Secretary of
Agriculture to reconsider a special condition requiring a specified
water flow over a diversion dam to protect downstream recreation
values in the Sequoia National Forest. The Secretary reconsidered the
flow requirements in light of evidence submitted by the applicant and
imposed a revised condition. Id. at 368. The Commission stated that
Section 4(e) "authorizes" it to impose "such conditions in a license
as the Secretary of Agriculture may deem necessary for the adequate
protection and utilization of the national forest involved" (id. at
385). Because the Commission agreed with the Secretary's condition,
that case did not present the issue involved here. In Arizona Power
Authority, 39 F.P.C. 955 (1968), the applicant and the Indian tribe
entered into an agreement permitting the applicant to use tribal water
resources and establishing the amount of compensation therefor.
Although the Secretary approved the agreements (id. at 958), the
Commission did not require as a condition of the license that the
applicant obtain the Secretary's approval, in addition to that
required by the tribe, to readjustments of water use or compensation.
Finally, Montana Power Co., 56 F.P.C. 2008 (1976), involved the term
of a license, not a Section 4(e) condition.
/38/ See One Third of the Nation's Land, supra, at vi, vii. Other
commentators have also concluded that a Secretary's Section 4(e)
conditions are mandatory. See, e.g., Lazarus, Indian Rights Under The
Federal Power Act, 20 Fed. B.J. 217, 221 (1960).
/39/ We note, however, that neither the Commission in its order nor
petitioners in the administrative proceeding challenged the
Secretary's conditions on the grounds that they were arbitrary or
capricious, or not necessary for the adequate protection and
utilization of the reservations. The Commission did criticize the
Secretary's conditions for not taking account of petitioners' proposed
project (Pet. App. 143-155). But under Section 4(e), the Secretary's
only concern is to ensure the adequate protection and utilization of
the reservations.
/40/ On the other hand, if the Commission denies a license because,
in its view, the Secretary's conditions render the proposed project
impractical, we assume the disappointed applicant is free to challenge
the Commission's order under Section 313(b) by attacking the
secretarial conditions.
/41/ Judge Anderson, who dissented from the court's other holdings,
agreed that Section 4(e)'s reservation proviso applies to the
downstream reservations (Pet. App. 33).
/42/ FPC v. Tuscarora Indian Nation, 362 U.S. at 114-115, is not to
the contrary. Tuscarora holds that tribal lands owned in fee by an
Indian Tribe are not "reservations" within the meaning of the FPA
because those lands are not "owned by the United States." In contrast,
as the court of appeals explained (Pet. App. 25-26), the Bands' water
rights and the reservations to which they attach are property
interests that are owned by the United States.
/43/ Furthermore, Section 10(e) of the FPA, 16 U.S.C. 803(e),
authorizes the Commission to fix annual charges for "the use of * * *
tribal lands embraced within Indian reservations." Congress's careful
use in this section of only a portion of the definition of
"reservations" demonstrates that it was quite capable of limiting the
effect of a particular provision of the FPA to lands within the
physical boundaries of a reservation when it intended such a result.
/44/ Although, on rehearing, the Commission qualified its prior
opinion with equivocal statements (Pet. App. 362-366), the conditions
remained unchanged.
/45/ Whatever water rights the licensee brings to the project are
effectively submitted to the Commission's disposition upon acceptance
of the license. See United States v. Appalachian Electric Power Co.,
311 U.S. 377, 419-428 (1946).
/46/ See, e.g., Act of Mar. 3, 1891, ch. 561, Section 18, 26 Stat.
1101 (former 43 U.S.C. 946) (right-of-way for reservoirs, canals, and
laterals); Act of Feb. 15, 1901, ch. 372, 31 Stat. 790 et seq.
(former 43 U.S.C. 959) (right-of-way for electrical plants, poles and
lines for the generation and distribution of electrical power, and for
other purposes); Act of Mar. 4, 1911, ch. 238, 36 Stat. 1253 (former
43 U.S.C. 961) (right-of-way for electrical poles and lines for the
transmission and distribution of electrical power, and for other
purposes).
/47/ See, e.g., Act of Mar. 3, 1901, ch. 832, Section 4, 31 Stat.
1084, 25 U.S.C. 311 (highways); Act of Mar. 2, 1899, ch. 374, Section
1, 30 Stat. 990, as amended, 25 U.S.C. 312 (railway, telegraph, and
telephone lines).
/48/ Principally, those tribes organized under the Indian
Reorganization Act, 25 U.S.C. 461 et seq.
/49/ The 1948 Act supplemented, but did not repeal, prior existing
statutes, including the FPA, which authorized rights-of-way across
Indian reservations (25 U.S.C. 326).
/50/ Section 1 of MIRA created a commission to select lands
suitable for a reservation, after which a trust patent would issue to
the Band for the reservation lands, pursuant to Section 3 (26 Stat.
712).
/51/ Section 8 was not included in the early drafts of MIRA. Its
history is partially described in H.R. Rep. 3282, supra, at 3. A
company had applied for a right-of-way for a ditch across an existing
reservation in southern California. The local Indian agent thought
the proposal would benefit the Indians, but the Commissioner of Indian
Affairs, relying on two opinions of the Attorney General, 18 Op. Att'y
Gen. 563 (1887), and 16 Op. Att'y Gen. 552 (1880), replied that there
was no statutory authority for granting canal rights-of-way. The
Commissioner therefore proposed amending the pending bill to confer
authority for granting rights-of-way across the reservations for water
conveyance facilities and for short railroad lines. Before the
amendment was adopted, the bill died.
The bill was reintroduced in the next Congress, and the
Commissioner's amendment was added as a new provision, Section 8, on
the House floor. 22 Cong. Rec. 311-313 (1890). In conference, the
Senate conferees agreed to the House amendment with the addition of a
clause requiring pre-patent secretarial grants of canal rights-of-way
to be subject to the condition that the Indians be supplied with a
sufficient quantity of water for irrigation and domestic purposes.
Id. at 554. The House conferees explained that this modification
would "better serve and protect the rights and privileges of the
Indians in and to their reservation lands." Congress then passed the
bill. Id. at 786.
/52/ Copies of this opinion have been lodged with the Clerk of the
Court. See note 3, supra.
/53/ The district court therefore held that an 1894 contract (J.A.
9-13) that purported to grant a right-of-way across the Rincon
Reservation and to limit the Rincon's water rights, was void ab initio
for failure to comply with Section 8 of the MIRA. It also held that a
1908 right-of-way permit from Interior was also invalid because it did
not comply with Section 8. Although unrelated to Section 8, the court
also held that portions of a 1914 contract (J.A. 22-27) between the
United States and Mutual and a 1922 contract (J.A. 28-38) between the
United States and Vista's predecessor were void ab initio to the
extent that they purported to convey or to limit the Bands' water
rights (slip op. 24-25).
/54/ Rio Verde Canal Co., 27 Interior Dec. 421 (1898), and United
States v. Portneuf-Marsh Valley Irrigation Co., 213 F. 601 (9th Cir.
1914), relied upon by petitioners (Br. 24 n.37), did not consider the
interplay between 43 U.S.C. 946, a general statute, and Section 8 of
MIRA, a specific statute.
/55/ The Court explained the reason for this rule:
"(W)hen the mind of the legislator has been turned to the
details of a subject, and he has acted upon it, a subsequent
statute in general terms, or treating the subject in a general
manner, and not expressly contradicting the original act, shall
not be considered as intended to affect the more particular or
positive previous provisions, unless it is absolutely necessary
to give the latter act such a construction, in order that its
words shall have any meaning at all."
Radzanower, 426 U.S. at 153 (quoting T. Sedgwick, The
Interpretation and Construction of Statutory and Constitutional Law 98
(2d ed. 1874)).
/56/ Because the amendment passed the Senate and was only deleted
in conference, the views expressed during the Senate debates by
opponents of the amendment are entitled to little, if any, weight in
assessing Congress's intent in rejecting the amendment. In other
words, the legislative history marshalled by petitioners and the
Commission cannot carry the day, because its significance is apparent
only "through strained processes of deduction from events of wholly
ambiguous significance, (which) furnish dubious bases for inference in
every direction." Gemsco, Inc. v. Walling, 324 U.S. 244, 260 (1945).
Instead, the Conference Report, which "represents the final statement
of terms agreed to by both houses (is), next to the statute itself(,)
* * * the most persuasive evidence of congressional intent." Demby v.
Schweiker, 671 F.2d 507, 510 (D.C. Cir. 1981) (MacKinnon, J.).
APPENDIX
APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.